State v. Kimball, 217
| Decision Date | 08 April 1964 |
| Docket Number | No. 217,217 |
| Citation | 261 N.C. 582,135 S.E.2d 568 |
| Court | North Carolina Supreme Court |
| Parties | STATE, v. William D. KIMBALL. |
T. W. Bruton, Atty. Gen., and Richard T. Sanders, Asst. Atty. Gen., for the State.
Howard B. Arbuckle, Jr., Charlotte, for defendant appellant.
G.S. § 148-45(a) makes it unlawful for any prisoner serving a sentence in the State prison system to escape or attempt to escape, and provides varying penalties for misdemeanants and felons. By Chapter 681 of the Session Laws of 1963, the legislature added subsection (b) as follows:
This section, while providing the same penalties listed in subsection (a) creates a new and distinct offense which can only be committed by a work-release prisoner or a convicted defenaant temporarily on parole. The indictment in this case follows the language of subsection (a), but the evidence discloses a violation of subsection (b). However, the defendant did not move for the nonsuit to which he was entitled for this fatal variance. State v. Hicks, 233 N. C. 31, 62 S.E.2d 497. Upon the argument here, defendant moved in arrest of judgment for that he had been indicted under G. S. § 148-45(a) but tried under G.S. § 148-45(b).
A motion in arrest of judgment must be based on defects appearing on the face of the record proper. It may not be used after verdict as a substitute for a motion for nonsuit to dismiss the action because of a variance between the indictment and proof or for want of sufficient evidence to support the verdict. State v. Reel, 254 N.C. 778, 119 S.E.2d 876; State v. McKnight, 196 N.C. 259, 145 S.E. 281. Therefore, the motion in arrest of judgment is overruled.
The defendant assigns as error the following portion of his Honor's charge:
'* * * (T)he court instructs you that if you find the facts to be in this case as all the evidence tends to show beyond a reasonable doubt, then it will be your duty, Members of the Jury, to return a verdict in this case of guilty.'
By voluntarily going to Gastonia without permission defendant was, on his own statement, guilty of a violation of G.S. § 148-45(b). However, he was indicted for a breach of G.S. § 148-45(a). Therefore, his Honor committed error by peremptorily instructing the jury to find defendant guilty if it found the facts to be as all the evidence tended to show. The evidence, if true, did not establish his guilt as charged. Defendant was entitled to a directed verdict of not guilty.
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State v. Best
...the evidence discloses a violation, if at all, of G.S. 90-108. This is analogous to the problem presented in State v. Kimball, 261 N.C. 582, 135 S.E.2d 568 (1964). In that case the defendant was tried under an indictment which charged that while lawfully confined at a prison camp he felonio......
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State v. Pakulski
...at 564, 576, 356 S.E.2d at 327. An "arrest of judgment must be based on defects appearing on the face of the record." State v. Kimball, 261 N.C. 582, 135 S.E.2d 568 (1964). In the case before us the defect was that upon the felony-murder conviction, the defendants would otherwise have been ......
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State v. Sellers, 174
...a motion in arrest of judgment. Defects which appear only by aid of evidence cannot be the subject of such a motion. State v. Kimball, 261 N.C. 582, 135 S.E.2d 568; State v. Reel, 254 N.C. 778, 119 S.E.2d 876; State v. Williams, 253 N.C. 337, 117 S.E.2d 444, 92 A.L.R.2d 513; State v. McKnig......
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State v. Allen
...evidence did not establish the defendant's guilt as charged. State v. Cooper, 275 N.C. 283, 167 S.E.2d 266 (1969). State v. Kimball, 261 N.C. 582, 135 S.E.2d 568 (1964). The defendant Bruce Lee Allen's motion for nonsuit should have been allowed as to this Defendant Walter Allen also moved ......